After 57 years, the State of Israel is thinking about coming up with a comprehensive immigration policy.

The emergence of immigration reform on the political agenda this summer took some by surprise because Israel’s migration policies have always been clear on two points. First, Israel refuses to let the Palestinian refugees that it expelled return to their homes. Second, Israel encourages Jews of all nationalities to become Israeli citizens through its Law of Return. This basic arrangement – an open door to Jews, and a closed door to nearly everyone else – is not likely to change soon.

Yet, on the nuts-and-bolts of immigration law, Israeli policy has been vague and sometimes ad hoc. What happens when an Israeli citizen marries a non-Jewish foreigner? What if the foreign spouse has children from a previous marriage? What if an Israeli wants to marry an illegal immigrant? What if migrant workers don’t leave or have children born inside Israel?

European and North American governments have filled thick law books with answers to these kinds of questions. But in Israel they’ve been left open, with thousands of people’s fates dependent on the discretion of the Ministry of Interior and its Population Administration. Hundreds of thousands of migrant workers came to Israel during the 1990s, many replacing Palestinian workers shut out by “closure” of the occupied territories. Tens of thousands of migrants have been left in limbo.

In May, Israel’s new Minister of Interior Ophir Pines-Paz formed a commission of legal scholars to propose comprehensive legislation. Media reports indicate that members of the Israeli cabinet want to strictly limit non-Jews’ ability to obtain any status in Israel, even if they are a close relative of an Israeli citizen.

The commission has only recently begun its work. Most of the information about its work has come through speculation in the media. If Israel’s government falls apart and goes to new elections, the whole project may be suspended or could lose its political foundation.

Like so many things in Israel, it began with fears that Jews would lose their demographic dominance in Israel. But the scope and direction of the commission’s mandate are unique. All of Israel’s immigration-related laws are reportedly on the table, including possibly tightening the Law of Return to make it harder for non-Jews with Jewish grandparents to immigrate. And at least some politicians want Israel to model its immigration laws on strict European models.

Israeli politicians often talk about the self-declared Jewish State as something unique, with the Law of Return among its defining features. Israel defies international law on the Palestinian right of return, and its Law of Return is openly discriminatory against non-Jews. It is therefore not at all routine for Israeli Ministers to look at western Europe for models of immigration policy. But the fact that Israeli leaders can realistically consider international models shows a great deal about the global state of immigrant rights today.

Immigration is the last vestige of racism in international law. At least in principle, governments - Israel included - have agreed to ban racial and ethnic discrimination in “political, economic, social, cultural or any other field of public life.”(1) But when states wrote the International Convention on the Elimination of All Forms of Racial Discrimination they left one form of discrimination intact:

Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.(2)

This allows leading western democracies to give preferences to certain nationalities and ethnicities when it comes to citizenship that would be abhorrent in nearly any other field. It also provides Israel legal cover for its Law of Return.

Of course, Israel’s willingness to look at international law is inconsistent at best. While international law allows general discrimination in immigration, states are prohibited from singling out specific nationalities for exclusion. Yet Israel has done exactly that, renewing its temporary legislation to Palestinians from the occupied territories. The UN Committee on the Elimination of Racial Discrimination has twice called for the exclusion to be revoked.(3)

Israel’s pro-Jewish immigration law is among the most extreme discriminatory immigration laws, and stands out for its tie to religion. But it is not completely unique. Several other countries have immigration laws that make it easier for people of certain national or ethnic backgrounds to obtain citizenship. Denmark’s Nationality Act favors people from Finland, Iceland, Norway or Sweden. Greece allows any “ethnic Greek” to apply for naturalization.

In 1984, the Inter-American Court of Human Rights ruled that Costa Rica could legally favor “nationals of other Central American countries, Spaniards and Ibero-Americans” in its nationality laws.(4) The Inter-American Court tried to explain immigration discrimination by arguing that close “historical, cultural and spiritual bonds” will ease assimilation and preserve traditional values that a state “has the right and duty to preserve.”

Hence, in immigration, discrimination remains generally legal, an area of law that seem more rooted in the 19th Century than in the post-World War II human rights era. One has to question how committed governments really are to equality if they insist on retaining the right to discriminate on the essential question of citizenship. Most western immigration laws discriminate against people from Asia, Africa and Latin America, and favor Europeans and North Americans. It should be very disturbing that mainly white northerners have a generally easier time moving around the world than southerners who are mainly people of color.

These moral doubts have particular weight in the case of Israel. Israel has made discriminatory immigration central to its national identity in a way that other countries have not. In the words of the Israeli Ministry of Immigrant Absorption’s website: “The Zionist enterprise of aliyah and absorption, has been, and remains, the human basis for the establishment and flourishing of the State of Israel. ”Palestiniancitizensof Israel have long questioned how they can be equal in a state that openly prefers Jews above all others.

As a legal matter, the Law of Return for Jews and the right of return for Palestinians have little to do with each other. The Law of Return is about immigration for people who had no previous association with Israel. But Palestinians are not seeking to immigrate; they are asking to return home. The same convention that lets states discriminate in immigration forbids any bias about “the right to return to one’s country.”

But Israel’s denial of Palestinian return still poses the greatest moral challenge to its pro-Jewish immigration policy. Costa Rica’s favoritism toward “Ibero-Americans” and Greece’s open door toward “ethnic Greeks” do not have such direct connections to ethnic cleansing. Israel is not merely asserting a historical or spiritual connection with Jews; it is simultaneously refusing to acknowledge the historical, cultural and spiritual bonds between Palestinians and their homes in Safad, Majdal, Jaffa, and hundreds of other villages and cities.

Israel’s government intends its immigration reform effort to maintain Jewish dominance, not to make the country more open. Beyond closing doors to foreigners, the resulting policies could have a sharp edge for Israeli citizens, many of whom might be prevented from living in their own country with their partners, spouses and children.

The Interior Ministry’s expert commission has yet to make any concrete proposals, but its mere existence has already sparked debates within the Israeli government, academia and human rights movement.

If Israeli immigration reform gathers momentum, there will be two main things to watch. First, how much hardship is the Israeli government willing to impose even on its own people to prevent the slightest drop in the Jewish demographic advantage? Second, to what degree will Israel be able to use international law and western European examples to legitimize harsh and discriminatory laws?

Michael Kagan is an American lawyer. He teaches in the Tel Aviv University Refugee Rights Clinic, and is also a consultant on refugee law issues in the Middle East.

Notes:
(1) International Convention on the Elimination of All Forms of Racial Discrimination article I.
(2) Ibid.
(3) Committee on the Elimination of Racial Discrimination, CERD/C/65/Dec.2. (20 August 2004).
(4) Advisory Opinion on the Proposed Amendments to the Naturalization Provisions of the Political Constitution of Costa Rica (OC-4/84), paras. 57, 60.

In this working paper, refugee law expert Michael Kagan develops the idea of conflicting rights as a means of addressing Israeli objections to Palestinian refugee return. Rather than explore Palestinian arguments for the right of return, this paper starts from the assumption that the right of return exists and must be accepted by Israel in order to reach a just peace that complies with international law.

Instead, this paper aims to identify and assess separate claims by Jews or Israelis that cannot coexist with refugee return. Without this separation, any assertion of Palestinian rights may be misunderstood as a denial of Israeli interests, and vice versa.

Because Palestinians base their right to return in international law, many Israelis may assume that international law leaves no room for their concerns. By looking at separate, conflicting rights, the interests of both sides can at least be acknowledged in the discussion, and both assessed through the lens of international law. This offers a channel of dialogue for Israelis and Palestinians who want a just solution to the conflict, and responds to Israeli intellectuals who have sought to acknowledge the justice of Palestinian claims while finding alternative reasons for opposing the full implementation of the right of return.

Kagan attempts to articulate the best case arguments that can be made under international law for different Israeli claims, and then assesses the relative strength of each argument. He concludes that Israelis can make serious arguments to resist specific cases of property restitution, and perhaps certain methods of refugee return. But he concludes that the frequently asserted claim that Jews collectively have a right to separate, exclusive self-determination in a state where they are the dominant majority has little merit in law.

Observations on the restitution problem

Individual property rights are the strongest conflicting rights claim that Israel can make against the right of return under international law. Secondary occupants’ rights have been a major issue in other restitution programs. This means that Israelis can conceivably acknowledge the refugees’ right to return without necessarily conceding that any Israelis need to be displaced. In order to comply with international law, restitution should be the primary or default remedy for refugee property claims which can be compromised only when it would impose substantial hardship. Whenever a Palestinian refugee is denied restitution, he or she would be owed substantial compensation by Israel, which is ultimately responsible for having confiscatedrefugee property. Nevertheless, a rights-based resolution of the refugee issue might not actually return all Palestinians to their original properties.

Nevertheless, the rights of secondary occupants are also subject to substantial limits.

First of all, secondary occupants’ rights would not block all refugee return, and it would have little effect in areas of the country that are sparsely populated. Recent research by scholar Salman Abu Sitta has noted that the majority of Israeli Jews live in the central region of the country where much of the land was Jewish-owned before 1948. While much urban refugee property was transferred to Jews, the majority of confiscated land remains vacant or sparsely populated. Hence, even if a final settlement took a very lenient approach toward Israeli property rights, the majority of Palestinian refugees would likely be able to return to their homes.

Second, not all Israeli property rights are equal. International law is most protective of residences and the right of people not to be displaced from their homes; commercial, industrial and agricultural property will be subject

to much less protection. In such cases, there is far less harm in displacing the secondary occupants, who at most should be able to claim compensation for their investments in the land. This compensation could come from the state, which is responsible for having misallocated the land, not from the returning refugees.

Third, the means by which various Israeli individuals and institutions acquired and used land may be an important consideration limiting defenses to restitution. The purpose of protecting secondary occupants is to avoid disrupting the lives of innocent persons. But where the secondary occupants were responsible for the original confiscation or for racially discriminatory allocation of land, it may not bee quit able to protect their rights over those of return refugees. Proposed UN Principles on Housing and Property Restitution for Refugees and Displaced Persons state: ‘The egregiousness of the underlying displacement, however, may arguably give rise to constructive notice of the illegality of purchasing abandoned property, preempting the formation of bona fide property interests in such cases.’

The Jewish National Fund (JNF) in particular acquired a great deal of confiscated refugee property in the late 1940s and 1950s through land sales that were illegal even under Israeli law, and insists to the present day that its property can only be used for the benefit of Jews. A number of powerful Israeli constituencies lobbied the Israeli government to distribute particularly valuable homes to them, and to give lower standard accommodations to new Jewish immigrants. In such cases, Israeli secondary occupants may not be able to legitimately block property restitution to returning refugees.

Fourth, even where secondary occupants acquired property in good faith, some authorities state that it is the secondary occupant, not the returning refugee, who should accept compensation, at least where the original buildings are still in existence.

Finally, it remains open to Palestinians to argue that they were victims of a state-sponsored discriminatory land regime that was inseparable from a larger campaign of ethnic cleansing. Palestinians can argue that they were victims of Israel, and have a right to restitution from Israel. If this requires the state to evict other individuals, then arguably the secondary occupants should seek compensation or alternative property, rather than place the burden of compromise on people who spent decades as refugees in exile.

Since international law remains ambiguous about how refugees and secondary occupants’ rights should be balanced, this is an area where Israeli and Palestinian negotiators may have substantial flexibility to design a solution. In other conflict resolution settings, the negotiated settlement prescribed general rules governing restitution along with an individual claims mechanism to resolve specific cases over the ensuing years. However, the precise rules varied considerably, especially on the question of how to weight the rights of secondary occupants.

Michael Kagan is an Attorney, Tel Aviv University, Clinical Legal Education Programs. The entire working paper is available on the BADIL website: http://www.badil.org. A hard copy of the paper may also be purchased on the BADIL website